Why is Delta-8 Legal?

Why is Delta-8 Legal?

Why is Delta-8 legal? Delta-8 (Δ8-THC) is considered an “alternative cannabinoid.” This makes the product very similar to CBD. And applies very similarly in terms of the regulations around it and why they’re legal to sell in the United States. In short, the percentage of tetrahydrocannabinol (THC) that is in the products themselves is less than 0.3%. Making them legal to sell according to the 2018 Farm Bill.

Key takeaways

  • Delta-8 (Δ8-THC) has a molecular structure where double bonds exist on their 8th carbon atom.
  • The percentage of tetrahydrocannabinol (THC) that is in Delta-8 (Δ8-THC) themselves is less than 0.3%.
  • Because the percentage of tetrahydrocannabinol (THC) that’s in them is less than 0.3%, they are legal to sell according to the 2018 Farm Bill.

Why is Delta-8 legal?

Delta-8 (Δ8-THC) is considered legal because it has less than 0.3% tetrahydrocannabinol (THC) inside the product. The reason that the product has this little tetrahydrocannabinol (THC) inside of it is because the product originates from a hemp oil.

Delta-8 (Δ8-THC) has very similar effects to that of CBD, although much stronger. In the sense that it blocks some brain receptors to create its “psychoactive” feeling. A recent study described how Delta-8 (Δ8-THC) works, saying “Δ8-Tetrahydrocannabinol binds to neuronal CB1 receptors,which are found on GABAergic and glutamatergic neurons throughout the brain and are thought to be receptors for endogenous anandamide.”

Delta-8, when compared to CBD, has very distinct effects. According to a study from 2009, “8-Tetrahydrocannabinol and CBD had clearly distinct effects on the neural, electrodermal, and symptomatic response to fearful faces. The effects of CBD on activation in limbic and paralimbic regions may contribute to its ability to reduce autonomic arousal and subjective anxiety, whereas the anxiogenic effects of Δ8-THC may be related to effects in other brain regions.”

Delta-8 originating from a hemp oil

The true distinguishing factor that allows for the Delta-8 (Δ8-THC) product to make itself legal is that it originates from hemp plants. Either fresh or frozen hemp plants. The extract is essentially derived from a hemp-based oil.

The extraction occurs by extracting CBD from the hemp plant, isomerizing it to form Delta-8 (Δ8-THC) using a catalyst (usually like a product like ethanol), and then refining and purifying the extract to form it’s final Delta-8 (Δ8-THC) product.

From there, the distillate can either be put directly into a vaping device, applied directly onto hemp flower buds to create an “alternative cannabinoid” product, or put into edibles for consumption.

The FDA’s stance on Delta-8 (Δ8-THC) 

While the legalities of Delta-8 (Δ8-THC) are changing quickly, the FDA most recently put out a series of letters (in December of 2023), suggesting “‘generally recognized as safe’ (GRAS) food additives” being added to consumable Delta-8 products.

This is not a new process for the FDA as in November of 2023 they released a number of letters on their stance with CBD consumable products. And continuing to release these letters into December of 2023. These letters act as general guidelines with new research and findings that the FDA can inform the public about in a rather “informal” way (unregulated).

In short, the FDA’s stance on Delta-8 (Δ8-THC) is that it’s considered a safe product to consume (with some of its typical warnings for relatively under researched chemicals).

States where Delta-8 (Δ8-THC) is legal

As of March 2024, here are the states where Delta-8 (Δ8-THC) products are legal:

  • Alabama*
  • Arizona
  • Arkansas
  • Florida*
  • Georgia (?)
  • Illinois
  • Indiana (?)
  • Kentucky*
  • Maine
  • Maryland* (?)
  • Missouri
  • Nebraska
  • New Jersey
  • New Mexico
  • North Carolina
  • Ohio
  • Oklahoma
  • Pennsylvania (?)
  • South Carolina (?)
  • Texas (?)
  • Washington D.C.
  • Wisconsin
  • Wyoming*

As of 2024, note that the * beside the state’s name means they’ve instituted age restrictions, preventing anybody aged 21 or under from buying Delta-8 (Δ8-THC). States marked with (?) are currently involved in legal action about the status of Delta-8 (Δ8-THC).

As of November 2023, a number of states are beginning to ban the sales of Delta-8 products outright.

States where Delta-8 (Δ8-THC) is illegal

Some states have made a fairly clear stance on the substance. Delta-8 would be considered illegal in the following states:

  • Alaska
  • Colorado
  • Delaware
  • Idaho
  • Iowa
  • Montana
  • New York
  • Nevada
  • North Dakota
  • Oregon
  • Rhode Island
  • Vermont
  • Utah
  • Washington

Could laws around Delta-8 change in the future?

They most likely will. Over the past 10-years, a fairly significant amount of regulation has changed on both a federal and a state level when it comes to cannabis products of all kinds. More states have opened up to legal and recreational use of regular cannabis products.

As Delta-8 (Δ8-THC) and its other sister products (Delta-9 and Delta-10) enter into the market, more local regulation may start to occur. Since its more recent popularity, age restrictions have begun to be put into place in certain states (usually requiring the purchaser to be 18-years-old or other).

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